Work E-Mail Not Protected by Attorney-Client Privilege, Court Says

E-mails between a client and attorney are no longer considered privileged and confidential if the client writes the messages from a work e-mail account, a California court of appeals has ruled.

The 3-0 decision Thursday by the Sacramento Third Appellate District means that if you intend to sue your employer, don’t discuss the suit with an attorney using company e-mail. The company has a right to access it and use it against you in a court.

“… [T]he e-mails sent via company computer under the circumstances of this case were akin to consulting her lawyer in her employer’s conference room, in a loud voice, with the door open, so that any reasonable person would expect that their discussion of her complaints about her employer would be overheard,” (.pdf) the court wrote.

Case law on electronic privacy in the workplace is slowly evolving, and not always for the best.

The U.S. Supreme Court in July ruled that a police officer’s texts on department pagers were not private. But that ruling was based on grounds other than the Ontario Police Department’s policy that said text messages on work pagers were not private.

The New Jersey Supreme Court said e-mail messages on a personal web-based e-mail account accessed from an employer’s computer were private. But that decision was contingent on the fact that use of such an account was not clearly covered by the company’s policy, and the e-mails in question contained a standard warning that the communications were personal, confidential, attorney-client communications.

In this most recent California appeals case, a secretary claimed her small-business employer became hostile when it found out she was pregnant shortly after being hired in 2004.

The company, Petrovich Development of Sacramento, California, introduced the e-mail at trial “to show Holmes did not suffer severe emotional distress, was only frustrated and annoyed, and filed the action at the urging of her attorney,” the court noted. On appeal, Holmes claimed the lower courts erred in allowing the e-mail into the case, which the developer had won.

The appeals court said Gina Holmes’ e-mails to her lawyer were not confidential because her employer had a written policy that company e-mail was not private and subject to audit.

The court said Holmes “used her employer’s company e-mail account after being warned that it was to be used only for company business, that e-mails were not private, and that the company would randomly and periodically monitor its technology resources to ensure compliance with the policy.”